In the New Term, High Stakes for the High Court Sep 24, 2008
The 2nd U.S. Circuit Court of Appeals as "arbitrary and capricious" under the Administrative Procedure Act. The FCC, said the court, had failed to produce "any evidence that suggests a fleeting expletive is harmful," much less that any such harm was "serious enough to warrant government regulation.". (Law.com)
Lawsuit challenges lethal injection Jul 30, 2008
ST. LOUIS (AP) Inmates, families, clergy and legislators are initiating a new civil action that challenges Missouri's method of lethal injection, claiming it violates the state's Administrative Procedure Act. The lawsuit, filed Thursday in Cole County, is on behalf of 13 of the 14 condemned prisoners for whom the state is seeking execution dates, including a man that could be executed in less than two months. (Jefferson City News Tribune, MO)
Needed: Independent Panel To Evaluate SEC Enforcement Program Jul 8, 2008
Rule making through enforcement violates the fundamental principles of due process that Congress established in the Administrative Procedure Act, which requires regulatory agencies to give notice and seek (and respond to) comment from the public before adopting or changing rules. In the recent past, federal courts have nullified various SEC rule-making attempts because the agency did not follow proper procedure or overstepped its authority in adopting rules. (Forbes)
Nonsense of Indecency Mar 19, 2008
Last June, in response to a lawsuit by broadcasters, the U.S. Court of Appeals for the Second Circuit ruled that the FCC had violated the Administrative Procedure Act by failing to "articulate a reasoned basis for its change in policy." That decision, which the Supreme Court now has agreed to review, did not definitively address the broadcasters' constitutional objections, but the court was skeptical that they could be overcome ... Last June, in response to a lawsuit by broadcasters, the U.S.... (Townhall.com)
FCC and Fox go to Supreme Court Mar 18, 2008
Many experts doubted the high court would take the case, since the appeals court ruling was based on procedural grounds -- specifically, that the FCC had failed to enact its new policy per the dictates of the Administrative Procedure Act. Though constitutional issues were implicit in the case -- the appeals court said that even if the FCC could fulfill its APA requirements, it doubted the fleeting expletives policy would pass constitutional muster -- the Supreme Court usually does not accept... (Variety)
Forest Service takes step toward new planning rules Feb 10, 2008
In March, U.S. district court order directed the agency to revise its 2005 planning rule until it complied with the court s order regarding the National Environmental Policy Act, the Endangered Species Act, and the Administrative Procedure Act. Colorado Wild Forest Watch coordinator Rocky Smith said environmental groups believe the new rule is essentially the same as the old one. (Montrose Daily Press, CO)
The Winds of Change Jan 26, 2008
OUTLOOK: Since so many of Martin s cable-hostile regulations are, and will, be litigated, the courts will probably chime in first on whether the FCC under Martin has run afoul of the Administrative Procedure Act, a 1946 law design to impose due-process obligations on independent agencies. There are no comments posted for this article. (Multichannel News)
Empire Resorts' Partner, St. Regis Mohawk Tribe, Sues Interior Secretary for Abuse of Office Jan 12, 2008
The new rules failed to follow the Administrative Procedure Act on several counts, including ignoring the requirement to consult with tribes or provide a comment period. The Secretary decided to simply rewrite the law to suit his own purpose, without consulting Congress, said Empire Resorts CEO Dave Hanlon. (Yahoo! Wire -- Entertainment News)
* The tortuous inaction of the CEC Nov 30, 2007
There are still no standard rules for the execution of these activities in the Administrative Procedure Act (F{k) ... That is, if the CEC sets administrative rules in accordance with the Administrative Procedure Act and issues legal orders on election work by civil servants and informs local governments of them, then local election commissions should organize elections in accordance with these standards ... Otherwise, if the CEC details the standard procedure for one-step voting in its... (Taipei Times, Taiwan -- World)
Bush Fuel Economy Measure Rejected by Court Nov 21, 2007
Subsequently, the court found the rule to be "arbitrary and capricious" under the Administrative Procedure Act, which requires agencies to make decisions based on reasonable rationale and factual assertions. By not accounting for a reduction in greenhouse gas emissions, NHTSA also violated the National Environmental Policy Act (NEPA), the court found. (OMB Watch)
Spitzer Gets Served Over License Debate Nov 8, 2007
The following contentions are being made in the document: * "Governor Spitzer's plan is in violation of Section 502 of the State Vehicle and Traffic Law, which indicates that the commissioner of the Department of Motor Vehicles shall require a Social Security number before issuing a driver's license; * "[The] plan defies the principle of separation of powers between the Executive and Legislative branches; * "[The] plan does not follow proper administrative procedure in the manner in which it... (Suffolk Life Newspapers, NY)
Gov. Spitzer, DMV all targeted for 'sanctioning' illicit behavior Nov 1, 2007
According to the complaint, "There is no express language anywhere in the VTL [Vehicle and Traffic Law] which dispenses with the requirement that an applicant for a driver's license provide his or her social security number." Moreover, Spitzer and the DMV intend to implement the policy without involving the New York State Legislature, and "without complying with the rule-making requirements prescribed by the State Administrative Procedure Act.". Special offers. (WorldNetDaily)
Justice Department Seeks Supreme Court Review of F-Word Case Sep 27, 2007
In early June, a panel of the U.S. Court of Appeals for the 2nd Circuit ruled that the FCC s crackdown on the fleeting violated the Administrative Procedure Act because the agency failed to supply a reasoned explanation for its tighter enforcement of broadcast indecency laws. The panel, in 2-1 vote, also observed that it didn t believe the FCC could fashion a constitutional policy on fleeting indecency, which the FCC had declined to punish as indecent for decades. (Multichannel News)
Verizon Makes Federal Case of FCC's Open Access Rules Sep 16, 2007
The wireless carrier is claiming that the FCC's order violates the U.S. Constitution and the Administrative Procedure Act ... The FCC's order violates the U.S. Constitution, the Administrative Procedure Act and is "arbitrary, capricious, unsupported by substantial evidence and otherwise contrary to law," Verizon argues. (E-Commerce Times)
White House Sued Again Over E-Mail Sep 6, 2007
The group's lawsuit filed under the Administrative Procedure Act seeks a federal court order directing the White House to recover any e-mails that were deleted from servers and that now exist only on backup tapes. Unless the electronic messages are retrieved from the backup tapes, the records "may be lost forever," the suit says. (Atlanta Journal-Constitution -- World)
Scientists Sue NASA Over Extensive Background Checks Aug 31, 2007
The suit claims violations of the Constitution's 4th Amendment protection against unreasonable search and seizure, 14th Amendment protection against invasion of right to privacy, the Administrative Procedure Act, the Privacy Act, and rights under the California Constitution. Plaintiffs in the lawsuit include senior research scientist Robert Nelson, a 27-year veteran who leads NASA's New Millennium Program, which tests or validates new technology NASA will use in space; William Bruce Banerdt,... (Fox News)
NASA sued over invasive background checks Aug 31, 2007
The suit claims violations of the U.S. Constitution's 4th Amendment protection against unreasonable search and seizure, 14th Amendment protection against invasion of the right to privacy, the Administrative Procedure Act, the Privacy Act, and rights under the California Constitution. Those in more sensitive positions are asked to disclose financial records, list foreign trips and give the government permission to view their medical history. (MSNBC -- Technology)
more » Aug 28, 2007
Kelley s applied for the permit June 13 and the ABC board granted it on July 19, according to the complaint, which is styled as a writ of certiorari, writ of mandamus and complaint filed under the Arkansas Administrative Procedure Act. Watson contends Kelley s failed to properly publish a notice required by the ABC listing him as the managing agent for Kelley s and a U.S. citizen. (Searcy Daily Citizen, AR)
Response to Mr Police Officer in Regards to Seat Belts Aug 17, 2007
(10) The commissioner shall promulgate rules and regulations in accordance with the Administrative Procedure Act for the implementation of the provisions of this Section. The commissioner shall determine the design, color, and placement of the tag issued under the provisions of this Section, provided that such design, color, and placement is easily discernable to law enforcement officers as designating individuals who are exempted from seat belt usage and provided that the tag includes a... (New Iberia, LA)
Conservationists rip revised forest planning rule Aug 17, 2007
But environmental groups argued that the rule violated those laws and also the Administrative Procedure Act, which requires public comment. The court sent the rule back to the Agriculture Department for compliance with the laws and for public comment. (Missoulian, MT)
Senate Panel Revives FCC's Indecency Authority Jul 20, 2007
came in response to a that said the FCC's new policy of cracking down on the unscripted, one-time utterance of the F-word was such a significant departure from precedent that it was "arbitrary and capricious under the Administrative Procedure Act" -- a law that imposes due-process requirements federal agencies like the FCC.. This bill is a narrowly tailored approach that would allow the FCC to maintain its policy adopted in 2003 and hold broadcasters responsible for airing expletives and... (Multichannel News)
Multichannel Newswire Jul 20, 2007
Multichannel News Newswire. Clearwire, which launched its first market in August 2004, has about 258,000 customers and offers service in 40 markets in 13 states. (Multichannel News)
* KMT sues Committee of Appeal Jul 19, 2007
As the Administrative Procedure Act (FD^k) stipulates that applicants who disagree with a Referendum Review Committee decision should file for administrative litigation in court rather than file a complaint with the Committee of Appeal, the latter should not have accepted the appeal, Hsu said. "Even if the Committee of Appeal heard the complaint it should have refused to listen to it. Rather than overturn the ruling, it should have asked the Referendum Review Committee to reconsider the... (Taipei Times, Taiwan -- World)
FCC slapped down over celebrity F-words Jun 6, 2007
In a 2-1 verdict, the court ruled that the FCC's action had been "arbitrary and capricious", breaching the Administrative Procedure Act. But although it agreed with the networks' suggestion that the FCC had acted unconstitutionally - setting up a potential Supreme Court challenge down the line - it limited its judgment to the issue of whether the FCC's rule change had been lawful. (Times Online)
2nd Circuit Finds FCC's Policy on 'Fleeting Expletives' Arbitrary Jun 5, 2007
The majority opinion was grounded solely in what it said was the FCC's failure to follow the Administrative Procedure Act, but the majority also said it doubted the FCC would be able to justify its policy change under the First Amendment ... Because the FCC's had violated the Administrative Procedure Act, the circuit said it was not necessary for it to address the constitutional challenges raised by Fox and the other media companies that intervened in the case. (Law.com)
Comanche Grasslands caught in crossfire Jun 3, 2007
Signed by George W. Bush, the 2005 National Forest System Land Management Planning Rule (2005 Planning Rule) was ruled by a District Court for Northern California (the Ninth Circuit) that the Forest Service's adoption of the rule violated the Administrative Procedure Act, the National Environmental Policy Act, and the Endangered Species Act. The Cimarron and Comanche National Grasslands Land Management Plan (CCNGLMP) would have been the first plan implemented under the new planning rules. (La Junta Tribune Democrat, CO)
Vouchers courtbound? May 26, 2007
According to Jenson, Utah's Administrative Procedure Act allows the state board to issue an emergency order that would go directly to the Supreme Court. "We assume that order will be appealed and the appeal goes straight to the Supreme Court it puts us on the freeway, removes all the stop signs, and it's the fastest, most absolutely certain way to get this issue to the Supreme Court in time to resolve it before the November election," Jenson said. (Deseret News)
GMUG proposed forest plan suspended May 9, 2007
On March 30, Judge Phyllis J. Hamilton, of the Northern District of California U.S. District Court, ruled that the Forest Service s adoption of new planning regulations violated the Administrative Procedure Act, National Environmental Policy Act, and Endangered Species Act. The ruling also said that until the agency complies with the court s order, the court has enjoined the Forest Service from implementing and utilizing the 2005 Planning Rule. (Montrose Daily Press, CO)
Order to recruit doctors for executions put ... (Brian Witte) Feb 27, 2007
Capital punishment cannot resume in Maryland until the protocols are properly adopted under the Maryland Administrative Procedure Act or exempted from the act by the General Assembly. A bill in Annapolis would exempt the protocols from the act's requirements. (Washington Times, DC)
NEW: Medical pot advocates sue feds, alleging false info Feb 23, 2007
ASA attorney Joe Elford said the lawsuit is brought under the federal Administrative Procedure Act, which provides for judicial review and reversal of any agency action found to be arbitrary and capricious. ASA in October 2004 had petitioned the Department of Health and Human Services and its subordinate Food and Drug Administration under the Data Quality Act, a 2000 law requiring information circulated by federal agencies to be fair, objective and meet certain quality guidelines. (Inside Bay Area)
Court halts executions, eyes review of protocols (S.A. Miller) Dec 22, 2006
The court found that the manual was never submitted to a joint legislative committee or given a public hearing before it was adopted by the Department of Corrections, as required under the state's Administrative Procedure Act. Page 1 of 2. (Washington Times, DC)
‘Roadless' advisory panel keeps working Oct 19, 2006
Rey told the group that the Administrative Procedure Act allows anyone to petition the government on rulemaking and that they could continue their work under that authority. He noted that they might wonder why the administration put in place the 2005 rule if the same work could be done under the act. (Missoulian, MT)
Road work's difficult, but Houstonians need to make the best of it Oct 7, 2006
For example, the Katy Corridor Coalition has filed a lawsuit in federal court seeking to stop the construction between Interstate 610 and Highway 6 under the National Environmental Policy Act, the Administrative Procedure Act and the Transportation Equity Act. The KCC says that environmental, health and economic concerns should be further studied and debated before the project continues. (Houston Business Journal, TX)
More of this story Jul 23, 2006
HR 4398 was introduced in November, and states that in 1998, a lawsuit was filed against the U.S. Department of Agriculture, alleging that it had violated the Equal Credit Opportunity Act and the Administrative Procedure Act by maintaining a pattern and practice of discrimination against African American farmers. In 1999, the United States District Court of the District of Columbia approved a civil rights settlement, and the USDA and African American farmers entered in to a five-year consent... (Pine Bluff Commercial, AR)
Letters: The Doolittles, warming, etc. Jul 17, 2006
CalPERS crafted the bill to totally exempt the board from the Administrative Procedure Act (APA) provisions, permanently excluding members and the public from substantive participation in the development of implementing rules. At my urging, the bill was amended on June 27 to allow CalPERS to move forward with rulemaking on an emergency basis, but still be bound by the APA.. (Sacramento Bee -- Opinion)
Survey: Alito on Presidential Power Jan 11, 2006
"I disagree with the court's decision insofar as it holds that some of the challenged administrative actions are subject to judicial review . . . . As I interpret the complaint and the appellant's brief, they seek review, not of Presidential action, but of actions taken by the named defendants, i.e., the Secretary of Defense, the Secretary of the Navy, the Defense Base Closure and Realignment Commission, and its members. Accordingly, I see no need to decide whether actions of the President are... (Village Voice)
